Sasha Borissenko: Women and the law - How much progress are we making?

There are numerous legal changed designed to make NZ more equitable for women. Photo / Getty Images

COMMENT:

"Meninists" (men who feel they are victimised by feminism) the world over must be sighing a huge sense of relief that International Women's Day is over for another year.

Old news, as it were. For the "humanists" in the room (it's not about equality despite popular belief, but rather knowledge and morality from a philosophy perspective) there is, in fact, an International Men's Day, but we just so happen to celebrate it 364 days a year.

Nonetheless, how are we really progressing in reducing the inequitable struggles of women? Ladies and gentlemen, let's look at the legislative framework:

Abortion

An abortion is unlawful unless certain legal grounds are met, and performing an unlawful abortion is a criminal offence. It's the unnecessary waiting times and hoops women have to go through (two certified consultants must be satisfied that there are "grounds"
- mentally unfit, for example), and conscientious objection by medical doctors (even during and after appointments) that are the real problems, in my opinion. A 2010 study found that an average wait was 25 days between the first appointment with the referring
doctor and the procedure, for example.

The Abortion Legislation Bill aims to rectify some of these issues. It passed its first reading in August last year with 94 votes in favour and 23 against. It then passed its second reading this month with 81 votes in favour and 39 against. Of the 39 nays, former
Minister for Women Louise Upston was a real shocker, so too was National leader Simon Bridges, and leader hopefuls Paul Goldsmith and Todd Muller. There was also Maggie Barry, Sarah Dowie, and Gerry Brownlee, but Judith Collins made up for all her National
comrades by professing her support. Iconically, she also stood before Parliament last year and said: "[My mother] was pregnant with me at the age of 39, and I was her sixth child, the doctors recommended an abortion. Many years later, people have thought that
they should have gone with that option. But I am still here and they're not going to get me yet." Incredible.

Leave entitlements

Next up is the Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2), which was introduced as a member's bill by Labour's Ginny Anderson in June 2019. The bill's aim was to make it clear that the unplanned death of a foetus constituted grounds for three days' bereavement leave for the mother and partner. The bill would resolve ambiguity over whether a foetus was covered by the word "child" under the Holidays Act 2003. The bill passed its first reading in December and now it's before the Education and Workforce select committee. Ginny Anderson said it's the second iteration of the bill as there were issues around whether abortion was included. It wasn't, she said.

Suppose you're a new parent, if you had your baby on or after 1 July 2018, you are entitled to 22 weeks of paid parental leave. This was extended to 26 weeks, if your baby is due on or after 1 July 2020. If you're an employee, the most you can get each week is $585.80 before tax. This is the equivalent to an annual salary of about $30,000 before tax. It's a bit low, if you ask me.

Domestic violence

More on the subject of leave, the Domestic Violence - Victims Protection Bill came into effect on 1 April last year. The new law entitles employees affected by domestic violence to up to 10 days of leave per year. There is also a flexible working provision (up to two
months), which could include changes in hours, location, and work duties. To combat potential stigma associated with talking about your situation, the law explicitly prohibits an employee being treated adversely in their employment.

Victims of domestic violence can take up to 10 days of leave per year. Photo / Getty Images

Questions remain as to how businesses treat these cases, and the impact on victims (noting that one in three women will be assaulted by an intimate partner during their lifetime) having to provide proof of said violence to their employer. Interestingly the leave and flexibility also covers those who have "inflicted" domestic violence, in other words, alleged perpetrators. What's more, employers can refuse requests on the basis they're unable to reorganise work among staff, there might be a detrimental impact on quality
and performance, there's a burden of additional costs, and so forth. The grounds don't apply to people who are subject to a collective agreement, however.

Domestic violence (continued)

Essentially, the Family Violence Act 2018 was created to improve the effectiveness and uptake of protection orders, remove inter-agency legal barriers to sharing information, and to increase the maximum duration of Police Safety orders.

The Family Violence Amendment Act 2018 has gone much further, promising to prioritise victim safety when courts make decisions as to whether to grant bail, and to specifically take protection orders into consideration in the sentencing process. It also widened offences to include forced marriages, assault on family members, and most notably strangulation. In just two months after strangulation came into effect in December 2018, 416 people were charged - that's almost five people each day.

Sexual violence

How many women does it take for a man to be prosecuted for rape? I forget. But the formulaic joke rings true when you think of how many women (87) came forward about their experiences at the hands of Harvey Weinstein, yet he was convicted of just two of the five charges.

Green Party MP Jan Logie has been leading the charge to improve the justice system for victims of sexual violence. The Sexual Violence Legislation Bill was introduced in November last year (amending the Evidence Act 2006 and Victims' Rights Act 2002),
it passed the first reading later that month, and is now before the Justice select committee.

It aims to reduce the retraumatisation that victims of sexual violence may experience when attending court and giving evidence by allowing greater use of pre-recorded evidence, for example.

What it doesn't include, are leave entitlements for victims who are summoned to court to give evidence. It also doesn't address the issue of consent, and whether laws should be changed so that the accused has to prove it. Interestingly, Labour proposed this change
to shift the burden of proof in 2015, but Justice Minister Andrew Little backed away from the move last year, citing 'innocent until proven guilty rhetoric. As it stands, New Zealand has no explicit definition of consent, other than providing situations where consent can't be obtained, such as being asleep or unconscious.

Whereas, the UK and some of the EU have consent definitions, and Canada has paved the way with its "affirmative model" - namely, legal consent is only obtained if you explicitly say or do something to show you clearly agree to the sexual activity.

Money, money, money

There's still some confusion as to the difference between pay equity and pay equality. Pay equality - which is commonly referred to as the gender pay gap -is the situation where a man and woman perform the same job and are paid differently, which is said to be a gap
of 9.3 per cent.

Depending on ethnicity and industry, the gap between what women and men earn can be even greater - around 20 per cent for Māori women, for example. Representation and promotion also show the disparities and disadvantages that women experience: there are more women in parliament than ever, certainly, but it's sitting at 38 per cent. It is noteworthy that among cabinet ministers 18 are men, nine are women.

Moving on to pay equity. After a five-year court battle, Kristine Barlett and her union achieved legal recognition that aged-care workers - a female-dominated industry - were paid significantly less than the male equivalent. The difference? They're valued less.

The Government of the time intervened and settled, while also fast-tracking funding arrangements and the Equal Pay Amendment Bill, which is still in the process of coming to fruition. Questions remain as to how the legislation will affect small businesses, and
whether it's even possible to rectify the undervaluing of women's work in one piece of legislation.

One positive is that the repeal of section 192 (formerly 70A) of the Social Security Act 1964 comes into effect on April 1st. The section punished single parents who refused to identify the other parent, resulting in a $22 benefit deduction, per child, per week,
and a further $6 deduction if the information wasn't supplied after 13 weeks.

At the time of last year's budget, 12,000 sole parents were affected. Around 6,000 of these sole parents identified as Māori, and 1,000 identified as Pasifika. Approximately 24,000 children lived in families affected by the reductions, and a benefit reduction was applied in relation to 15,000 of these children.

Sure, the repeal means these sole parents will gain an average $34 a week as of April 1. But will this be backdated? Ministry of Social Development policy deputy chief executive Simon MacPherson said it would not. It suggests to me that the focus on child poverty
actually hides the issue of the inequities and poverty that women suffer, especially solo mothers.

I could and should go on to discuss transparency of pay, meaningful flexible working conditions, the lack of regulations around the objectification of women in the media, and unpaid labour. But for now, another day, another 91 cents.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email sasha.borissenko@gmail.com.